### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-18-00297- CR

Ex parte P aul Vallejo

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 167 TH JUDICI AL DISTRICT NO. D-1 -DC- 16- 1002 96, TH E H ONO RAB LE P . DAVID W AHLB ERG, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Appe l lant Paul Vallejo has been charg ed by indictment with three counts of ag g rava ted sexual assault of a child. See Tex. Penal Code § 22.021(a) (1)( B) , (2)( B)

. Appellant filed

a pretrial ap p l i ca tion for writ of habea s corpus, asser ting that the statue of limit ations and the constitutional prohibition ag ains t ex p o s t fac to laws bar prosec ution of the charg ed offe nses. See Tex. Const. art. I , § 12; T ex. Code Crim. Proc . arts. 11.01, 11.08. Af ter c onducting a hearing, the trial court denied habea s relief

. We aff irm the t rial court’s order denying appellant’ s pretria l 1 application for

writ of habe as cor

pus.

The rec ord contains a rec ord of a writ hearing that indicates that appellant previously filed 1 a pretria l application for wr i t of habea s corpus and that the trial court hear d and denied that application. No record of that previous hea ringappea

rs in the re cord be fore us. The writ-hearing rec ord further ref

lects that appellant re- filed his pretria l application for writ of habea s corpus beca use t here wer e “tec hnical err ors in the proce eding ” befor e. The denial of this subsequent pretrial application is the subject of this appeal.STANDARD OF REVIEW In revie wing a trial court’s decision on a pretria l applicati o n for writ of habea s corpus,

we revie w the fac ts in the light mos t fa vorable to the trial court’s ruling and, absent an abuse of discretion, up h o ld the ruling

. Ex parte W heele r , 203 S.W .3d 317, 324 (Tex. Crim. App. 2006); Ex parte Ali , 368 S.W .3d 827, 830 (Tex. Ap p . —Austin 2012, pet. ref ’d). An abuse of discretion does not oc cur unless the trial court acts “ar bitrarily or unrea sonably” or “without ref ere nce to any guiding rules and principles,” State v. Hill , 499 S.W .3d 853, 865 (Tex. Crim. App. 2016) (quoting Montgomery v. State , 810 S.W

. 2 d 3 7 2 , 3 8 0 (Tex. Crim. App. 1990)), or unless the trial court’s decision “fa lls outside the zone of rea sonable disag ree ment,” Johnson v. State , 490 S.W .3d 895, 908 (Tex. Crim. App. 2016).

DISCUSSIO N

In his habea s application, appellant first maintained that the prosec ution was barr ed by the statute of limit ations i n ef fe ct at the time the alleg ed offe nses wer e committed. He next contende d that the prosec ution for the char g ed offe nses subjected him to an ex post fac to violation. He r aises those a

rguments in two points of error on a ppeal.

Statute of Limitat ions Pretrial habea s, followed by an i n t er l ocutory appea l, is an extraordinary reme dy

. Ex parte Ingram , 533 S.W .3d 887, 891 (Tex. Crim. App. 2017); Ex parte Perry , 483 S.W .3d 884, 895 (Tex. Crim. App. 2016); Ex parte Doster , 303 S.W .3d 720, 724 (Tex. Crim. App. 2010). Thus,

2“[a] defe ndant may use a pretria l writ of habea s corpus only in very limit ed circ umstances.” Ex parte

Smith , 178 S.W .3d 797, 801 (Tex. Crim. App. 2005).

Gene rally , a p re t ri al writ of habea s corpus may not be used to test the sufficie ncy of the charg ing instrument. Id. at 8 0 1

– 0 2 ; accord Perry , 483 S.W .3d at 895; Ex parte Ellis , 309 S.W .3d 71 , 79 (Tex. Crim. App. 2010); Doster , 303 S.W .3d at 724; see Ex parte Tamez , 38 S.W .3d 159, 160 (Tex. Crim. App. 2001) (“We have long held that when there is a valid statute

or ordinance u n d er which a prosec ution may be brought, habea s corpus is g ener ally not available prior to trial to test the sufficie ncy of the complaint, information , o r indictment.”). An exception aga i n s t t esting the s ufficie ncy of t he charg ing instrument applies when prosec ution of t he offense is barr ed by the s tatute of limit ations. Do s t er , 3 0 3 S .W.3d at 724; Smith , 178 S.W .3d at 802; see Ex parte W

eise , 55 S.W .3d 617, 620 (Tex. Crim. App. 2001) (noting that “whe n the pleading , on its fac e, shows that the offe nse char g ed is barr ed by limit ations

. . . the applicant is challeng ing the trial court’s power

to proce ed”)

. L imitations is a n absolute bar to pr osecution. See Smith , 178 S.W .3d at 802 n.17 (“[T]here is no authority in law to prosec ute any citizen of Texas for the violation of the law afte r the period of limit ation has intervene d.” (quoting Ex parte Hoard, 140 S.W

. 449, 451 (Tex. Crim. App. 1911)). “T here is no point i n wasting scar ce judicial and societal resourc es or putting the defe ndant t o gre at expense, inconvenienc e, and anxiety if the ultimate result is never in question.” Smith , 178 S.W .3d at 802. Thus, when the fac e of the pleading shows that the offe nse char g ed is barr ed by

limit ations, habea s relief should be g rante d. Id. ; Tamez , 38 S.W .3d at 160. T h e indictment in this case charg es appellant with committing the offe nses of ag g rava ted s exual assault of a child ag ainst V.G. on or about M ay 1, 1999 (Count I ), J uly 1, 1999

3(Count I I ), and August 16, 1999 (Count I I I ). Under the provisions in eff ect at the tim e o f these alleg ed offe nses, the statute-of- limit ations period for ag g rava ted sexual assault o f a child was ten year s from the 18 t h b i rt hday of the victim. See Act of May 24, 1997, 75th L eg ., R.S., ch. 740, § 1, art. 12.01, 1997 Tex. Gen. L aws 2403, 2403 (cur rent version at Tex. Code Crim. Proc. art. 12.01(1) (B )).

The rec ord ref

lects that V.G. was born on October 19, 1985. Ten y ear s from her 18th birthday was October 19, 2013. Thus, und er the provision in eff ect at the time of the charg ed offe nses, the limitation period was set to expire on October 19, 2013. The indictment in this case

was returne d on J anuar

y 30, 2017. Given that the indictm en t wa s re tu rned afte r V.G.’s 28th birthday , appellant contende d that the statute of limit ations bars prosec ution of the alleg ed offe nses of ag g ravated sexual assault of a child beca use the limit ation period had expired prior to the return of the indictment.

Howeve r, the L eg islature may extend the s tatute of limitations for prosec ution of a criminal offe nse afte r the offe nse has been comm i t t ed b u t b efore the expiration of the orig inal limit ation period. Lindsey v. State , 760 S.W .2d 649, 653 (Tex. Crim. App. 1988); Archer v. State , 577 S.W .2d 244 (Tex. Crim. App. 1979). In 2007, befor e the statute of limit ations had run on the 1999 offe nses, the L eg islature amende d article 12.01 of the Texas Code of Criminal Procedur e and provided that, eff

ective September 1, 2007, no statute of limit ations bars the prese ntment of felony indictments for the offe nses of sexual assault of a ch i ld, ag g ravated sexual assault of a child, or indece ncy with a child. See Act of May 1 8 , 2 0 0 7, 80th L eg ., R.S., ch. 593, § 1.03, art. 12.01, 2007 Tex. Gen. L aws 1120, 1120 (c urre nt version at Te x . Code Crim. Proc. art. 12.01(1) (B )).

4Unless the L eg islature expressly provides otherwise, a statute ex tendingthe per iod of limit ation applies to all offe nses not time-barr ed at the time of the passag e of the act so that a prosec ution may be commence d at any time within the new duly established limit ation period even if the old period of limit ation has expired. Lindsey , 760 S.W .2d at 653; Archer , 577 S.W .2d at 244. 2 Her e, the forme r l imitation period applicable to the charg ed 1999 offe nses—V.G.’ s 18th birthday plus ten year s—had not y et expired on September 1, 2007. There fore , the trial court cor re ctl y deter mined that the new limit ation period for the offe nse of ag g ravated assault of a child applied so that the instant prosec ution is notbarr ed by limit ations. Acc ording ly , we conclude that the trial court did not abuse its discretion by denying appellant’ s pretria l h ab ea s application on this g round. See, e.g. , Tamez , 38 S.W .3d at 161 (conc luding that a ccuse d was not entitled to pretr ial habea s corpus re lief beca use plea ding did not show on its fac e that char g ed offe nse was barr ed by limit ations). We overr ule appellant’ s first point of er ror.

Ex PostF acto

Both the United States and Texas constitutions prohibit the S tate from applying a n

ex post fac to law. See U.S. Const. art. I , § 9, cl. 3 (prohibiting passag e of ex post fac to law); Tex. Const. art. I , § 16 (same) ; see also U.S. Const. art. I , § 10, cl. 1 (prohibiting states from passing

ex post fac to law). An ex post fac to law is one that: (1) punishes as a crime an act previously

In the 2007 amendment, the L eg islature expressly provided that the new limit ation period 2 did not apply t o an o ffense if the prosec ution of the offe nse beca me barr ed by limit ations befor e September 1, 2007. SeeAct of Ma y 18, 2007, 80th L eg ., R.S., ch. 593, § 4.01(c), 2007 Te x . Gen. L aws 1120, 1148. 5commi t t ed t hat was innocent when done; (2) ag g ravates a crime, or makes it g reater than it

was, when committed; (3) ch an g es the punishment and inflicts g rea ter punishment than the law attache d to the criminal offe nse when committed; or (4) deprive s a person charg ed with a crime of any defe nse available at the time the act was committed. See Peugh v. United St a t es , 569 U.S. 530, 538–39 (2013); Colli ns v. Y oungblood , 497 U.S. 37, 41–44 (1990); Rodriguez v. State , 93 S.W .3d 60, 66 (Tex. Crim. App. 2002); Ex parte Davis , 947 S.W .2d 216, 219– 2 0 (T ex . Crim. App. 1996); see also Grimes v. State , 80 7 S

. W

. 2 d 5 8 2 , 583–84, 586–87 (Tex. Crim. App. 1991) (e x p l ai n ing that law is ex post fac to if it is “passe d ‘af ter the fac t’ or commission of an act” an d retrospe ctively chang es conseque nces perta ining to a ct and that Texas courts have adopted fede ral definition of ex post fac to when interpre ting Texas constitutional provision by deter mining “whe ther

a statute assig ns more disadvantag eous criminal or penal conseque nces to an act than did the law in place when the a ct occ urre d”).

In his habea s application, in addition to claiming that the instant prosec ution is barr ed by limit ations, appellant further arg ued that the prosec ution is barr ed under the Ex Post Fa cto clause s of the United St ates and Texas constitutions, claiming that “[b] y chang ing the law the L eg islature has chang ed the leg al conseque nces o r re l at i o n s in [appellant’s] case . . . and deprive [d] him of a defe nse that was in e ffe ct at the time of the alleg ed commission of the offe nse.” A ppellant asser

ts that the elimination of the period of limit ation altog ether in the 2007 amendment, as opposed to simply an extension of the limit ation period, deprive d him of a defe nse that was in eff ect at the time

6of the commission of the alleg ed o ff en s es . Howeve r, while a statute of limit ations is “in eff ect” 3 when a criminal offe nse is committed, no statute-of- limit ations defe nse is a vailable to a defe ndant at the time of the c riminal offe nse. Such a defense acc rues only at s ome l ater point (if at all); it is not a vailable at the time the criminal act was committed. Thus, chang ing the statute of limit ations and re moving the limitation period did not deprive appellant of a def ense tha t was ava ilable at the time he alleg edly

committed the charg ed off enses in 1999. Moreov er , statutes of l imitations are measure s of publ ic pol icy “entire ly subject t o the will of the L eg islature.” P h i l l i p s v. State , 362 S.W .3d 606, 612 (Tex. Crim. App. 2011), overruled on other grounds by Ex parte Heilman , 456 S.W .3d 159, 166–69 (Tex. Crim. App. 2015) (quoting Vasquez v. State , 557 S.W .2d 779, 781 n. 2 (T ex . C rim. App. 1977)); see Ex parte Matthews , 933 S.W .2d 134, 136 (Tex. Crim. App. 1996), overruled on other grounds by Proctor

v. State , 967 S.W .2d 840, 844–45 (Tex. Crim. App. 1998) (“Statutes of limit ation are acts of grac e in that the sovere ign surre nders its rig ht to prosec ute (or its rig ht to prosec ute at its discretion); thus t h ey ar e considere d to be equivalent to acts of amnesty .” (quoting Vasquez , 557 S.W .2d at 781)); Martinez v. St a te , No. 03-12-00273- CR, 2014 WL 1208774, at *2 (Tex. App.—Austin Mar. 20, 2014, no pe t.) (mem. op., not designated f or publication) ( “[T] he statute of limitations is

a proce dural rule [ ] in the nature of a defe nse” that operates as an “ac t of g rac e for the benef it of potential def

en d an t s , a voluntary surre ndering by the people of their rig ht to prosec ute.” (quoting

Specifica lly , appellant a sserts i n his brief, “Ther e is no period of time which will trigg er 3 the statute of limit ations for this offe nse[;] a potential defe nse that did exis t at the time of the alleg ed commission of this indicted offe nse[ ] was remove d by the State to m ak e t he prosec ution of said crime e asier f

or the sover eign.” 7Proctor v. State , 967 S.W .2d 840, 843 (Tex. Crim. App. 1998)). Consequently , statutes of

limit ations “may be chang ed or repe aled without violating constitutional prohibitions ag ainst ex post fac to laws in any case wher e a rig ht to acquittal has not been absolutely acquir ed by the completion of the period of limit ations.” Phillips , 362 S.W .3d at 612 (quoting Vasquez , 557 S.W .2d at 781 n.2). Thus, the limit ation period may be extended or remove d by the L eg islature, and a prosec ution within the new time period will be permitted if the limit ation period had not alre ady expired befor e the law

was c hang ed. See id. at 613; Matthews , 933 S.W .2d at 136.

The 2007 amendment to article 12.01 at issue here does not violate the constitutional prohibit i o n against ex post fac to laws. Fur ther, beca

use the limit ation period for the charg ed ag g rava ted sexual assaults in this case had not expired befor e the limit ation period was amende d by the L eg islature, the instant prosec ution does not violate the constitutional prohibition ag ainst ex post fac to laws. See, e.g. , Latham v. State , No. 02-04-230- CR, 2006 WL 20398, at *3 (Tex. App.—For t Worth J an. 5, 2006, no pet.) (mem. op., not designated f or publication). For the above rea sons, we conclude that the trial court did not abuse its discretion by denying appellant’ s pretria l habea s application on this g round. Acc ording ly , we overr ule appellant’ s second point of e rror .

CONCLUSION

Having conclude d that the prosec ution f or the charg ed offe nses is not barr ed by the applicable statute of limitations and that the 2007 amendment to ar ticle 12.01 does not violate the constitutional prohibition ag ainst ex post fac to laws, we further conclude that the trial court did not

8abuse its discretion by denying appellant’ s pretria l application for writ of habe as corpus.

Acc ording ly , we a ffirm the tria l court’s orde r deny ing ha beas r elief.

__________________________________________ Cindy Olson Bour land, J ustice Be fore Justices Puryear , Goodwin, and B ourland Affir med Filed: Nove mber 14, 2018 Do Not Publish

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